Asberry v. Biter

Filing 66

ORDER DENYING Request for Entry of Default and Motion for Default Judgment as to Defendants Lozovoy and Relevante signed by Magistrate Judge Michael J. Seng on 9/12/2017. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TONY ASBERRY, 12 13 14 15 Plaintiff, v. Case No. 1:16-cv-01741-DAD-MJS (PC) ORDER DENYING REQUEST FOR ENTRY OF DEFAULT AND MOTION FOR DEFAULT JUDGMENT AS TO DEFENDANTS LOZOVOY AND RELEVANTE C. RELEVANTE, et al., Defendants. (ECF NOS. 38, 39) 16 17 18 19 20 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 21 rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on the following 22 claims: an Eighth Amendment claim for deliberate indifference to a serious medical need 23 against defendants Lozovoy and Relevante, an Eighth Amendment conditions of 24 confinement claim against defendants Ferris and Godfrey, and a First Amendment 25 retaliation claim against defendants Ferris and Godfrey. 26 27 28 1 On July 18, 2017, Defendants Lozovoy and Relevante timely answered the 2 complaint. (ECF Nos. 27, 35.) On July 21, 2017, Plaintiff moved for entry of default and 3 for default judgment as to these Defendants. (ECF Nos. 38, 39.) 4 Federal Rule of Civil Procedure 55(a) requires the Clerk of Court to enter default 5 against a party when that party has “failed to plead or otherwise defend, and that failure 6 is shown by affidavit or otherwise.” Once default has been entered, the Plaintiff may 7 move for the entry of default judgment. Fed. R. Civ. P. 55(b)(2). Here, Defendants 8 Lozovoy and Relevante timely responded to Plaintiff’s complaint, and there is no basis 9 for entering default against them. 10 11 Accordingly, Plaintiff’s request for entry of default and motion for default judgment are HEREBY DENIED. 12 13 14 IT IS SO ORDERED. Dated: September 12, 2017 /s/ 15 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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